124 Mo. 630 | Mo. | 1894
This case was certified from the St. Louis court of appeals. We adopt the statement of Rombauer, P. J., who delivered the majority opinion in that case. 56 Mo. App. 9.
The substantial defense made by the answer is that the work done was illegal and void, because done in contravention of an ordinance of the city providing, among other things:
“Hereafter no sidewalk shall be constructed, the cross grade of which, or rise from the curb line, shall be greater than one half inch vertical rise to one foot horizontal distance; and in each instance the curb line shall be maintained at its correct elevation above the city directrix, which shall be determined from the construction of the particular street in question.” The ordinance also provides that its violation by anyone shall be a misdemeanor, punishable by fine.
The trial of the cause by the court, without the intervention of a jury, resulted in a judgment for plaintiff. The defendants appeal, and assign for error the action of the court in refusing to nonsuit the plaintiff, as requested, and the giving of erroneous declarations of law by the court on its own motion. As the declarations of law given by the court show the theory of the law applied by the court to the evidence, which is the only object of such declarations, where a cause is tried by the court, they will be fully set out hereinafter.
On the trial there was evidence tending to show that there was a difference between the grade of Eighth street and that of Market street, at the point of their intersection at this corner, of five and one half inches; that owing to this difference it was impossible to com
At the request of the defendants, the court first declared that there was no evidence before it to show that it was a physical impossibility to construct the sidewalk in question in conformity with the requirements of the ordinance, or to show that the requirements of the ordinance were unreasonable. However, to the other declarations of law asked by the defendants, which announced, in substance, that, unless the sidewalk was constructed in conformity with the provisions of the ordinance, the plaintiff could not recover, the court added the following qualifications:
‘ ‘Unless the court shall further find from the evidence that the established grade of Market street and Eighth street, at their intersection, where the pave-
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A strict and literal compliance with ordinances, and contracts thereunder, prescribing the manner in which public street improvements shall be made, has never been required as a condition to the acceptance of the work by the city or to the validity of the tax bill, for the cost thereof charged against the property of individuals. The ordinance, under which the work in question was done, was general in its application and, -to require literal compliance therewith, under every exceptional circumstance, would be unreasonable and in instances might work great hardship and injustice upon a contractor or property owner, or both. Indeed the charter itself, in recognition of this difficulty, secures to the property owner the right to reduce the recovery of a special tax bill, by showing that “the
So it was said, by this court, after citing cases which announce the doctrine that a suit or a tax bill could only be defeated in ease the ordinances had been disregarded in a material respect by the city authorities or the contractor: ‘‘These cases are sufficient to show
that this court has never adopted the extreme view that, in order to recover for these local improvements, the plaintiff must show a literal compliance with all the provisions of the ordinances. Distinction must be made between those matters which affect the substantial rights of the parties and those which are formal and directory.” Cole v. Skrainka, 105 Mo. 309.
The question here is whether the construction of the sidewalk was in substantial compliance with the requirements of the ordinance. The only complaint made is in respect to that part of the pavement at the corner of Markert and Eighth streets. That the incline at that point from the building line to the curb, a distance of twelve feet, is eight or nine inches, instead of six inches, as fixed by the ordinance, is not questioned. On the question of the effect of this variance upon the value of the sidewalk to the owner, and upon its general utility and safety to the traveling public the evidence was conflicting. It, however, tended to prove all the facts upon which the declarations of law given by the court were predicated. The instructions themselves are in accord with the principles of law herein announced. The finding of the court upon the evidence, and the law, as properly declared, is conclusive upon rrs. Judgment of the court of appeals affirmed. Barclay, J., not sitting.